The Texas Courts of Appeals are part of the Texas judicial system. In Texas, all cases appealed from district and county courts, criminal and civil, go to one of the fourteen intermediate courts of appeals, with one exception: death penalty cases. The latter are taken directly to the Texas Court of Criminal Appeals, the court of last resort for criminal matters in the State of Texas. The highest court for civil and juvenile matters is the Texas Supreme Court. While the Supreme Court (SCOTX) and the Court of Criminal Appeals (CCA) each have nine members per the Texas Constitution, the sizes of the intermediate courts of appeals are set by statute and vary greatly, depending on historical case filings and so that the justices on each court can timely adjudicate the volume of cases regularly before them. The total number of intermediate appellate court seats currently stands at 80, ranging from three (Texarkana, El Paso, Waco, Eastland, and Tyler), four (Amarillo and Beaumont), six (Austin and Corpus Christi-Edinburg), seven (Fort Worth and San Antonio), nine (Houston-1st and Houston-14th), and thirteen (Dallas) per court.
Appellate courts consisting of more than three justices hear and decide cases in panels of three. Those courts with more than three justices sit in rotating panels and do not consistently sit with the same justices. In some cases, the justices will hear arguments from the parties' lawyers in what is called oral argument. The lawyers present their arguments one at a time, typically for twenty minutes each, followed by a brief rebuttal from the appellant, the party complaining of the decision of the lower court. During the lawyers' presentations, the justice commonly interject with questions that the lawyers answer on the spot. On rare occasions, all the justices of a court of appeals sit together en banc to reconsider a panel decision or to assure consistency in that court's jurisprudence. En banc consideration is 'disfavored" according to appellate rule 41.2(b). The en banc process is also used to overrule prior precedent of the same court which its panels would otherwise follow. The precedents established by a court of appeals are binding on the lower courts in its own district, but not in others.
The various courts of appeals occasionally but rarely hand down conflicting rulings on the same legal issue. In large part, the Texas Supreme Court (in civil cases) or Court of Criminal Appeals (in criminal cases) exist to resolve these rare conflicts and to set forth consistent legal precedent for the state's litigants. Decisions of the two courts of last resort on questions of law are binding on all state courts, and are also followed by federal courts when they hear cases governed by Texas state law.
The federal courts sitting in Texas apply state law when the case is not controlled by federal law or by the law of another jurisdiction based contractual choice of law or other basis for application of another's jurisdiction's law. Not infrequently the federal district courts sitting in Texas and the U.S. Fifth Circuit Court of Appeals make guesses as to how the Texas Supreme Court would rule on an issue of state law that is still unsettled due to a conflict among the intermediate courts of appeals.[1] Such an issue may also be referred to the Texas Supreme Court by certified question,[2] but this procedure is rarely employed.
Like the members of the Texas Supreme Court and the Court of Criminal Appeals, the Justices of the intermediate Texas Courts of Appeals are elected in partisan elections to six-year terms. Some, however, are initially appointed by the Texas Governor to fill vacancies and then run as incumbents in the next election.
In a small number of instances, (4-6% in recent years),[3][4][5][6][7] the Texas Supreme Court transfers a case from one court to another. Under Texas Rule of Appellate Procedure 41.3, the transferee court must apply controlling precedents of the court from which the case was sent, if they exist. All courts of appeals retain the discretion to recall retired justices to assist writing any backlog of opinions in the court.[citation needed]
In 2023, a law was passed creating a new appellate level court with jurisdiction over appeals from the new Texas business courts and state government related litigation, the Fifteenth Court of Appeals.[8] In June 2024, the Governor began appointing judges to the Fifteenth Court of Appeals.[9] These courts will be open for cases on September 1, 2024.[10] In August 2024, the Texas Supreme Court rejected a constitutional challenge to the appellate business court's creation.[11] In addition to hearing appeals from certain defined case types brought in the new Texas trial level business courts, the Fifteenth Court of Appeals will hear appeals statewide in cases brought by or against a wide range of state government entities, against state officers and employees arising out of their official conduct, and "matters in which a party to the proceeding files a petition, motion, or other pleading challenging the constitutionality or validity of a state statute or rule, and the attorney general is a party to the case."[12]
History
The Old Harris County Courthouse, home of the First and Fourteenth Courts of Appeals of Texas
Courts of civil appeals in Texas were established in 1891 by constitutional amendment to help handle the increasing load of the court system. They had jurisdiction to hear appeals and mandamus petitions of any civil case from their region, with the regions decided by the legislature. The amendment provided that three-judge courts of appeals were to be created by legislature, and in 1892, the legislature created 3 courts of appeals: The First Court of Civil Appeals in Galveston, the Second Court of Civil Appeals in Fort Worth, and the Third Court of Civil Appeals in Austin. In 1893, the legislature created the Fourth Court of Civil Appeals in San Antonio out of territory taken from the first and third courts, and the Fifth Court of Appeals in Dallas. In 1907, the legislature created the Sixth Court of Civil Appeals in Texarkana. Then in 1911, the Seventh Court of Civil Appeals in Amarillo and the Eighth Court of Civil Appeals in El Paso were created. Soon after that, the Ninth Court of Civil Appeals was created in Beaumont in 1915, the Tenth was created in Waco in 1923, and the Eleventh was created in Eastland in 1925.[13]
In 1957, after Hurricane Audrey severely damaged the Galveston County Courthouse, the legislature moved the First Court of Appeals to Houston (where it sits today) and required Harris County to provide facilities.[14]
It was not until the 1970s that any more courts were created with the Twelfth Court of Civil Appeals in Tyler, the Thirteenth in Corpus Christi and Edinburg, and the Fourteenth in Houston. The latter exercises concurrent jurisdiction with the First Court.[13]
In 1977, the legislature increased the number of judges of various courts and authorized courts of appeals to sit in "panels" of not fewer than three judges.[14]
On September 1, 1981, all Courts of Civil Appeals were given criminal jurisdiction, and in 1985 a constitutional amendment was passed so that all courts were known as "Courts of Appeals" instead of "Courts of Civil Appeals."[14] Until 1981, all criminal appeals cases went directly to the Texas Court of Criminal Appeals, and all cases involving capital punishment still do.[15][16]
In January 2019, a large number of newly elected justices took office, which required panels that included incumbents who were defeated in the November 2018 elections to be reconstituted, though in practice, this reconstitution caused little disruption in court productivity. Because of similar turnover in many metropolitan trial courts, the court procedure rules required pending mandamus cases to be abated and remanded for the new trial court judge to reconsider the challenged order of his or her predecessor.
The overall effect of the November 2018 Democratic sweep of the appellate courts in Houston, Dallas, and Austin was to make the intermediate appellate judiciary more diverse in terms of party affiliation, gender, and race/ethnicity, as can be seen by comparing the demographic statistics reported by the Office of Court Administration for 2018[17] and 2019.[18]
There are fourteen appellate districts each of which encompasses multiple counties and is presided over by a Texas Court of Appeals denominated by number:[19] The counties of Gregg, Rusk, Upshur, and Wood are in the jurisdictions of both the Sixth and Twelfth Courts, while Hunt County is in the jurisdiction of both the Fifth and Sixth Courts.
First Court of Appeals
First Court of Appeals of Texas – Houston (formerly Galveston), covering Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Grimes, Harris, Waller, and Washington counties
Second Court of Appeals of Texas – Fort Worth, covering Archer, Clay, Cooke, Denton, Hood, Jack, Montague, Parker, Tarrant, Wichita, Wise, and Young counties
Tenth Court of Appeals of Texas – Waco, covering Bosque, Brazos, Burleson, Coryell, Ellis, Falls, Freestone, Hamilton, Hill, Johnson, Leon, Limestone, Madison, McLennan, Navarro, Robertson, Somervell, and Walker counties
Thirteenth Court of Appeals of Texas – Corpus Christi and Edinburg, covering Aransas, Bee, Calhoun, Cameron, De Witt, Goliad, Gonzales, Hidalgo, Jackson, Kenedy, Kleberg, Lavaca, Live Oak, Matagorda, Nueces, Refugio, San Patricio, Victoria, Wharton, and Willacy counties
Fourteenth Court of Appeals of Texas – Houston, covering Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Grimes, Harris, Waller, and Washington counties
Opinion output and public access to opinions and orders
Collectively the Texas Courts of Appeals issue close to 10,000 opinions a year (9,909 in FY 2018) which are almost equally divided between civil and criminal cases.[50] The number is high because appeals to these courts are "of right" and each case must be decided with an opinion, even if the disposition is in the form of a voluntary dismissal or an involuntary dismissal for noncompliance with briefing rules or a fatal jurisdictional defect.
Although the COA follow different conventions in the formatting of their opinions, all are issued in standard PDF and are posted on the COA's respective websites, where they can be looked up through the online docket sheet created for each case. The courts' Case Search portal allows searches by appellate case number, but also by party name and attorney name or bar number, and by other case attributes. Most COAs also make other documents filed in a case available online, including briefs, letters, and notices. The issued opinions can also be found on Google Scholar (CaseLaw) and on other repositories of appellate opinions. Google Scholar additionally includes procedural orders in its database, which are linked to the pages featuring the opinions by the hot-linked appellate case number. Whereas the courts issue majority and dissenting/concurring opinions as separate PDF documents, Google Scholar combines them into one page and displays onscreen in a larger font and more user-friendly format, in addition to providing much better search functionality and hotlinks to cited cases if they are available from its database.
Dissents and concurrences
Only about 1% of the issued COA opinions are dissents. Concurrences (separate opinions in which a justice agrees with the disposition, but not with the reasons for it, or only in part) accounted for 1% in 2018, up from 0.5% the previous year.[51] The proportion of dissents and concurrences was only slightly higher in 2019, 1.9% for concurrences (including opinions concurring and dissenting) and 2% for dissents.[52] Similar numbers followed in 2020.
Party affiliation and mixed composition are not the only sources of disagreement that manifest themselves in dissents. Kem Thompson Frost, the Chief Justice of the Fourteenth Court of Appeals, is known as an independent thinker and prolific dissenter. She wrote a total of 21 concurring or dissenting opinions in FY 2018 while her counterpart in the First Court of Appeals, Chief Justice Sherry Radack, wrote none.[53] Both presided over all-Republican courts, although one member on the First Court who had been elected as a Republican, Justice Terry Jennings,[54] switched to the Democrats and also wrote large number of separate opinions (19).
Statewide, there were 175 dissents and concurrences in Fiscal Year 2018, out of a total of 6,540 merits opinions. The total tally was 9,909, which includes per curiam opinions. As seen by the data for the Houston Courts of Appeals, individual justices can have a big impact on their respective court's comparative ranking, and on the statewide total.
By definition, a dissent in the Court of Appeals does not decide the case. Dissents (and concurrences) are nevertheless important because they typically highlight unsettled areas of the law or splits among the Courts of Appeals, and increase the chance that Texas Supreme Court will exercise discretionary review if a petition is filed in a case that drew a dissent in the Court of Appeals.
References
^Boren v. U.S. Nat'l Bank Ass'n, 807 F.3d 99, 105-6 (5th Cir. 2015)(Where, as here, the proper resolution of the case turns on the interpretation of Texas law, we are bound to apply Texas law as interpreted by the state's highest court." Am. Int'l Specialty Lines Ins. Co. v. Rentech Steel LLC, 620 F.3d 558, 564 (5th Cir.2010) (internal quotations and alterations omitted). Because the Texas Supreme Court has not decided whether a lender may abandon its acceleration of a loan by its own unilateral actions and, if so, what actions it must take to effect abandonment, we must make an "Erie guess" as to how the Court would resolve this issue. Id.)
^TEX. CONST. Art. V, § 3-c(a) ("The supreme court [has] jurisdiction to answer questions of state law certified from a federal appellate court."); TEX. R. APP. P. 58 (certified questions of law).
^ abcdefghijklmnUnder Article 5 of the Texas Constitution, justices who reach the age of 75 during the first four years of their 6-year term, must retire by December 31st of the 4th year of their term. If justices reach the age of 75 during the 5th or 6th year of their term, they will be able to serve out the remainder of their term.[21]
^Previously appointed by Governor Abbott as Associate Justice (Place 5) from July 23, 2020–December 31, 2020.
^Originally appointed by Governor Rick Perry (R) as Associate Justice (Place 4). Subsequently elevated by Governor Greg Abbott (R) as Chief Justice on October 5, 2017.
^Originally took office as Associate Justice (Place 7) after being elected in a partisan election. Subsequently elected as Chief Justice in 2020, and took office on January 1, 2021.
^Originally elected as Associate Justice (Place 2). Subsequently elected as Chief Justice in 2022 and took office on January 1, 2023.
^Originally elected as Associate Justice in 1994. Subsequently appointed as Chief Justice by Governor Rick Perry (R) and took office in May 2005.
^Originally appointed by Governor Greg Abbott (R) as Chief Justice from October 3, 2019 – December 31, 2020. Subsequently appointed as Associate Justice (Place 2) from January 4, 2021 – December 31, 2022. Reappointed as Chief Justice on December 8, 2023.
^Originally elected as Associate Justice in 1994. Subsequently appointed as Chief Justice by Governor Rick Perry (R) and took office in May 2005.
^Originally appointed as Associate Justice by Governor Rick Perry (R). Subsequently appointed by Governor Greg Abbott (R) and took office as Chief Justice on September 17, 2018.
^Originally elected as Associate Justice in 1998. Subsequently elected as Chief Justice in 2002, and took office on January 1, 2003.
^Originally elected as Associate Justice (Place 4). Took office as Chief Justice on January 1, 2019, after being elected in 2018.
^Originally appointed as Associate Justice (Place 9) by Governor Rick Perry (R). Subsequently elected Chief Justice in 2020 and took office January 1, 2021.
